As much as we wish it weren’t so, active shooter situations are a major challenge for law enforcement. Recent examples include the Columbine butchery, the Amish bloodshed and the Virginia Tech carnage. This type of horror is not limited to schools or universities. Public establishments and private businesses have also been the target of active shooters. Unfortunately, after such unspeakable slaughter, the litigation which follows normally focuses on law enforcement–instead of focusing on the perpetrators of such grievous harm. Various legal issues having to do with civil liability lawsuits arise from these situations. Issues range from doctrines such as substantive due process claims, to special relationship claims, to state tort claims.

Generally, use-of-force lawsuits against law enforcement are based upon what the officer did – used pepper spray against the perpetrator; shot the suspect; rammed the vehicle; conducted a baton strike. Other cases involve what the officer “did not do” concerning the subject. For instance, he failed to render medical aid to the prisoner; delayed in rendering medical assistance to the suspect, etc.

When dealing with an active shooter case, Pandora’s box is opened. First of all, the lawsuit filed against the officer is normally brought by the victim of the active shooter, not the active shooter himself. Secondly, it is not necessarily what the officer did – but rather the victims’ lawsuits are often based on what the victim claims the officer “could have” or “should have” done or on what the victim claims the officer “failed to do.” In reality, the law enforcement officer did not directly cause the victim’s harm – that was caused by the active shooter.

Active shooter litigation, replete with difficult and complex issues, should not be taken lightly. Nor should it to be viewed as a typical use-of-force claim. This article is the first in a series on some of the legal implications of active shooter litigation. The corresponding legal questions, which this specific type of situation raises need to be addressed in a meaningful analysis for the public and law enforcement alike.

Accordingly, it is my intent to identify some of the federal legal issues which potential plaintiffs, who in their grief for the loss of loved ones, or their pain from physical and emotional injuries, might raise in bringing lawsuits against those who are responding to such a cataclysmic event. It is understandable for those who’ve lost loved ones or who’ve been injured to want some type of accountability and closure. There is a natural, human sympathy for those victims. Having suffered greatly over the loss a child, I am mindful of the overwhelming grief one feels after losing a loved one. Understand that this suffering is not to be minimized whatsoever. The same is to be said concerning those survivors injured by the active shooter.

It is also my intent to identify some of the potential defenses which law enforcement officers have with respect to such lawsuits. The basic problem is a question of focus. Who should be held accountable? The individual/s who actually inflicted the suffering, or those who responded to the emergency? After all, what realistic ability does law enforcement have to prevent the loss of human life or injury caused by an active shooter? Interestingly, for those officers on the front line: we do not know their names – we do not recognize their faces – all we see is their uniforms. Yet those same unknown officers put on those uniforms every day, work their tour-of-duty and do their best to protect us from social deviants roaming the streets. From this starting point, the analysis begins.

The Due Process Clause and the Claim of Duty to Protect
One of the first issues to be confronted is the concept of “duty to protect.” What does the federal case law say about law enforcement officers and their duty to protect citizens? In essence, this claim is based on what is known as a “substantive due process” argument. Probably one of the more foundational cases in this area is DeShaney v. Winnebago County Department of Social Services 489 US 189, 109 S Ct 998, 103 L Ed 2d 249 (1989). In the DeShaney case, a divorced father so seriously beat his 4-year old son that the boy suffered severe brain damage, from which it was expected that the son would spend the rest of his life in an institution. The boy and his natural mother sued the county and certain employees of the Department of Social Services (DSS) for failing to protect the boy from the father’s abuse. The DSS had received several complaints of child abuse, had actually taken the child out of the father’s custody at one point in time, later returned the child to the father, and thereafter continued to receive complaints of child abuse. Plaintiffs’ claim was that the county, its DSS agency and its employees had violated the boy’s rights under the Fourteenth Amendment by “failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.” DeShaney 489 US at 193. In other words, the plaintiffs claimed that the State “was categorically obligated to protect him in these circumstances.”DeShaney 489 US at 195.

The trial court dismissed the case. The dismissal of the lawsuit was upheld by the Seventh Federal Circuit Court of Appeals. The plaintiffs then appealed to the United States Supreme Court. At the Supreme Court level, the Court noted that plaintiff’s claim invoked the substantive component of the Due Process clause of the Fourteenth Amendment. The Supreme Court rejected plaintiffs’ Fourteenth Amendment Due Process claim and affirmed the dismissal of the case. In doing so, the Supreme Court analyzed the effect of the Due Process Clause, stating:

“But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” DeShaney 489 at 495.

The Court also stressed the purpose of the Due Process Clause, specifically writing:

“ … Its [the Due Process Clause] purpose was to protect the people from the State, not to ensure that the State protected them from each other. ….” DeShaney 489 at 196.

The Supreme Court emphasized that the Due Process Clause generally imposes no affirmative duty upon the State or its agents to protect people from harm caused by other people or by other means. The Court stated:

“Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. … If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney 489 at 196, 197.

The holding of DeShaney reflects that the Due Process clause does not impose upon the State and its agents an automatic, general affirmative duty to protect people from others who cause them harm. The basic concept of the Due Process Clause is to protect people from actions of the State and its agents – not inactions. It should be noted that in DeShaney, the plaintiffs did not make a “procedural due process” claim, namely that the child had been denied protection without giving the boy appropriate procedural safeguards. Therefore such an argument was not analyzed.

However, the plaintiffs in DeShaney did argue before the Supreme Court that the Wisconsin child protection statute had given the boy “… ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation under [the Supreme Court’s] decision in Board of Regents of State Colleges v. Roth 408 US 564, 92 S Ct 2701, 33 L. Ed. 2d 548 (1972).” DeShaney 489 at 195, footnote 2.Nevertheless the Supreme Court refused to address that argument since it had not been pleaded in the complaint, had not been argued in the appeals court, and had not been raised in the petition of certiorari to the Supreme Court. DeShaney 489 at 195, footnote 2.

A reading of the DeShaney case, however, reveals that there appears to be one express and one implied exception to the Court’s holding about no affirmative duty to protect under the Due Process Clause. The first exception is the claim that a duty might arise when there is a “special relationship” between particular individuals and the State. In DeShaney, the Supreme Court noted that there are some instances in which the State is accountable for a specific person’s safety and well-being. The Supreme Court stated:

“It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” DeShaney 489 at 198.

And in further commenting upon the concept of a “special relationship” the Court stated:
“In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf – through incarceration, institutionalization, or other similar restraint of personal liberty – which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” DeShaney 489 at 200.

As a special note, it is the nebulous phrase – “other similar restraint of personal liberty” – from the DeShaney Court with which the courts struggle when applying and identifying the “special relationship” doctrine. The second exception is the “state-created danger” theory (which has also developed an offshoot called the “state-enhanced danger” theory). The language which some courts have identified as establishing these theories is found in the same DeShaney comments cited above. Additionally, and more specifically, these exceptions are also inferred from the following statements by the DeShaney Court:

“While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.” DeShaney 489 at 204.

In essence, the foundational effect of the DeShaney case is to confirm that a Substantive Due Process – failure to protect against private violence – claim is not a viable, federal constitutional claim upon which victims of active shooters can successfully maintain a lawsuit against the state or its officers, unless one of the above exceptions is established: namely special relationship; state-created danger; state-enhanced danger. If such an exception is established, the lawsuit against the state and its officers may well not be dismissed.

Some Final Observations and CommentsThe above issues, as well as other claims and defenses, will be addressed in additional detail in further articles. The legal emphasis will be on federal claims and defenses, and how they relate to active shooter situations and litigation. Individual state tort law claims, which may vary from jurisdiction to jurisdiction, will not be addressed. Again, as a closing comment, I want to emphasize that I am mindful of the overwhelming grief which a person feels over the loss of a loved one, and in no way desire to minimize that. The same is to be said concerning those survivors injured by the active shooter. I also want to point out that those professional law enforcement officers who respond to active shooter situations are themselves victims and will carry with them the emotional and psychological scars long after the incident is over. Finally, it is strongly recommended that officers and their departments should definitely consult with their legal advisors and local prosecuting attorneys concerning the legal issues surrounding active shooter situations. They must be addressed at some point in time.

About the AuthorMark Baganz is a former City of Madison, Wisconsin police officer and a practicing attorney.

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